Property Transactions and Married Foreign Nationals
In a recent article, we looked at the question of whether foreign nationals are permitted to own property in South Africa. A related question is what happens when a foreign national, who has entered into a marriage outside of South Africa, wishes to buy or sell property. Let’s take a look.
When a couple marries in South Africa, they are either married in community of property in terms of our common law, or out of community of property if the necessary pre-nuptial contractual obligations have been met. These two options also apply to South African customary marriages, depending on the type and date of the marriage.
When a couple marries outside of South Africa, however, their marriage is automatically governed by the laws of the country where the husband was domiciled, or ordinarily residing, at the time the marriage was concluded. Given that we do not know what type of marriage they have entered into, this must be recorded when it comes to buying and selling property.
Buying a property
If a contracting party enters into a contract to purchase a property, and his or her marriage is governed by the law of another country, this information must be mentioned on the title deed. The reference will, in general, read:
JACK DANIELS
BORN ON / PASSPORT NUMBER:
MARRIED WHICH MARRIAGE IS GOVERNED BY THE LAWS OF THE UNITED STATES OF AMERICA
A typical mistake is often made when the reference reads: “MARRIED ACCORDING TO THE LAWS OF……” this is clearly wrong. The validity of the marriage, will be determined according to the law of the place where the parties got married (lex loci matrimonium) but the husband may be domiciled in another country at the time of the marriage. If the marriage for example takes place in Mexico, the parties were married according to the laws of Mexico but the marriage will be governed by the laws of the United States.
Selling a property or taking out a mortgage
If a contracting party sells a property or takes out a mortgage bond and his or her marriage is governed by the law of another country, spousal assistance is required. The reference will in general read:
JOHN ALEXANDER WALKER
BORN ON / PASSPORT NUMBER:
MARRIED WHICH MARRIAGE IS GOVERNED BY THE LAWS OF THE UNITED STATES OF AMERICA AND DULY ASSISTED BY HIS SPOUSE JIMMY WALKER AS FAR AS NEEDS BE.
What does spousal assistance mean?
Simply that the spouse of the contracting party will be required to give their consent in the form of signed documents that will be lodged in the Deeds Office, even though they do not form part of the agreement.
Why is spousal assistance necessary?
To ensure that the spouse of the contracting party is aware of the facts of the specific situation, as it may burden their estate.
Written by Wessel de Kock
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